Florida Supreme Court just made death penalty murkier

The Florida Supreme Court on Thursday opted for the practical rather than the consistent by deciding that some death row inmates should continue to face execution based on the timing of their trials while more than 200 others face resentencing. Florida’s capital sentencing system has been in disarray since a January ruling by the U.S. Supreme Court declared the law unconstitutional. Thursday’s court opinion provides a clearer way forward but may not be the final word.

Mark James Asay was 23 when he shot and killed two men in Jacksonville in 1987. A jury convicted him of the murders and recommended, by a 9-3 vote, that he be sentenced to death. Until the law was overturned this year, juries in first-degree murder cases rendered advisory sentences of either life in prison or death, and the advice did not have to be by unanimous vote. The ultimate decision was up to the judge. In Asay’s case, the judge cited three aggravating factors and sentenced Asay to death.

The U.S. Supreme Court ruled earlier this year in Hurst vs. Florida that the law violated the Sixth Amendment guarantee to a trial by jury and gave too much authority to judges. That decision was based in part on a 2002 case, Ring vs. Arizona, in which the court said a jury rather than a judge must determine aggravating factors. The 2016 ruling cast Florida’s 386 death row inmates into legal limbo — and prompted a flurry of petitions for new trials. Florida Attorney General Pam Bondi and the state’s prosecutors, though, argued that long-decided cases should not be affected.

The Florida Supreme Court on Thursday essentially tried to split the difference, creating an arbitrary line.

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The five justices in the majority said the Hurst ruling should not apply to 173 cases finalized before the 2002 Arizona case because they had been settled based on earlier precedent — which was believed to be constitutional at the time.

They also reasoned that ordering new sentencings, calling witnesses and digging up evidence in those cases, many of them decades old, would be impractical and burdensome on the court system. They make a good point about the practical problems, but there is a better way that would have treated all death row inmates the same, avoided clogging the courts with new trials and provided certainty for victims’ families.

In his dissenting opinion, retiring Justice James Perry rightly argued that using the 2002 date draws an arbitrary line between defendants who are entitled to the current constitutional protections and those who are not. “Undoubtedly, there will be situations where persons who committed equally violent felonies and whose death sentences became final days apart will be treated differently without justification,” Perry wrote. He also offered a simple remedy: Vacate those inmates’ death sentences and resentence them to life in prison. That would bring finality to the cases while still rendering a just punishment for a heinous crime.

Clinging to the death penalty is not worth the trouble or the cost in time and money, and fewer death sentences are being handed out nationwide. The Florida Supreme Court’s opinion is an attempt to preserve a death penalty system, but its effort at pragmatic compromise creates more inconsistency.

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